Listen In: Substitute for S. 1692 Was NOT Adopted Unanimously
At That’s My Congress, we would like to clarify a matter which may appear unimportant out of context. In context, however, the clarification demonstrates a small but consistent effort by two senators to reform surveillance laws in the direction of greater constitutional protection.
In an otherwise excellent legislative analysis by Kevin Bankston of the Electronic Frontier Foundation, it is asserted that “the Leahy-Feinstein substitute was adopted by unanimous consent.” The Judiciary Committee itself simply states that the substitute was “adopted,” without reference to vote counts or record of objections. But video record of the Judiciary Committee reveals something different altogether.
This “substitute amendment” (read full text) was offered principally by Senators Patrick Leahy and Dianne Feinstein, and cosponsored by fellow committee members Ben Cardin, Biden surrogate Ted Kaufman and Sheldon Whitehouse — all Democrats. When adopted, it further weakened Leahy’s S. 1692 bill, excluding all FISA Amendments Act reforms and retreating on reform of the Patriot Act.
The following is my transcription of the October 1 Meeting (you may follow along on video from minute 50:30 to minute 52:30):
Senator Patrick Leahy: Thank you. There are others seeking recognition, but before we do that I'd just like to move the Leahy-Feinstein-Cardin-Kaufman-Whitehouse substitute amendment, and then of course we'll be open to amendments. Is there any objection to the substitute Leahy-Feinstein-Cardin-Kaufman-Whitehouse amendment? Without ob...
Senator Pete Sessions: Mr. Chairman...
Leahy: Yes.
Sessions: I would just say, that amendment, I know has generally been discussed, but was really not released to us until 4 or 5 o'clock yesterday afternoon. I'm willing to discuss it, but I just want to say, that's a tight time frame.
Leahy: It is.
Sessions: Assistant Attorney General for National Security told us that they were worried, as Senator Feinstein said, about anything that would operationally weaken their ability to proceed, and so I guess that I would say that I'm uneasy about agreeing to that, but I'm prepared to discuss it.
Leahy: I, I appreciate that. Then the substitute is adopted. The...
Senator Russell Feingold: Mr. Chairman?
Leahy: Senator?
Feingold: I would like to have the opportunity to make an open statement and [inaudible]
Leahy: OK, well, the normal process is to adopt it and then have statements and amdendments to it, but if you, or at least that's always been the tradition here. But if you want me to withhold it I...
Feingold: I would ask to be reported as voting against the substitute amendment and...
Leahy: OK. The substitute is adopted.
Senator Richard Durbin: Mr. Chairman, I would like to put this to a vote.
Leahy: Well, we'll note those opposed to adopting the substitute. The substitute is adopted, and now it is open to amendment.
There are three pieces of information of note here.
First, Senator Pete Sessions noted that the substitute amendment hadn’t been given to members of the Senate Judiciary Committee until the night before it was to be adopted and considered, hardly enough time for senators or their staffers to read, digest and consider its provisions. This indicates a rush job.
Second, Senator Patrick Leahy strenuously and repeatedly worked to enter the substitute amendment into adoption without bringing it to a vote or ever affirmatively asking for unanimous consent. This wasn’t Leahy’s only expression of eagerness to get his new, unread bill passed without collegial review; at the end of the markup session, Leahy tried to extract a promise from his fellow committee members that they would restrict further debate on the measure to just one hour (those members demurred).
Third, two Senators — Dick Durbin of Illinois and Russ Feingold of Wisconsin — interjected themselves into Patrick Leahy’s statement of committee adoption to object to the substitution.
Someone’s in a hurry to pass a bill with language Senators haven’t had the chance to review, and two Senators expressed their objections to that move. This exchange should be a tipoff to citizens that something unpalatable is headed down the hatch.
Activism Reminder
These committee wranglings take place in the context of an effort to pass a bill extending warrantless surveillance authority in the United States of America for four more years. Without further legislation, that authority expires at the end of 2009, which may explain Patrick Leahy’s rushed, non-deliberative manner.
If you support a return to a constitutional standard for surveillance, one that requires warrants based on probable cause, and if one of the following Democratic members of the Senate Judiciary Committee represents your state, please take the time to place a call:
Senator Ben Cardin of Maryland. DC Office Phone #: 202-224-4524
Senator Dianne Feinstein of California. DC Office Phone #: 202-224-3841
Senator Al Franken of Minnesota. DC Office Phone #: 202-224-5641
Senator Ted Kaufman of Delaware. DC Office Phone #: 202-224-5042
Senator Amy Klobuchar of Minnesota. DC Office Phone #: 202-224-3244
Senator Herb Kohl of Wisconsin. DC Office Phone #: 202-224-5653
Senator Patrick Leahy of Vermont. DC Office Phone #: 202-224-4242
Senator Chuck Schumer of New York. DC Office Phone #: 202-224-6542
Senator Arlen Specter of Pennsylvania. DC Office Phone #: 202-224-4254
Senator Sheldon Whitehouse of Rhode Island. DC Office Phone #: 202-224-2921
If you don’t live in California, Delaware, Maryland, Minnesota, New York, Pennsylvania, Rhode Island, Wisconsin or Vermont, you don’t have direct representation on the Judiciary committee, at least in the responsive majority caucus. But you still can call the majority office of the Judiciary Committee directly at (202) 224-7703.
Whether you are calling your Senator or calling the Judiciary Committee directly, please ask for two things:
1) Cosponsorship of S. 1686, the JUSTICE Act. This bill was introduced by Senators Feingold and Durbin and offers the strongest reforms of both FISA and the Patriot Act;
2) Support for amendments that introduce the protections contained in the JUSTICE Act into whatever surveillance bill is passed out of the Judiciary Committee.
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It would be a good idea to put together something for people to say when they called.
I zealously jumped to the phone before planning what I was going to say and realize you didn’t have a script up, I was uhmming and scanning the wrong bills I wanted him to vote against. Finally I just said that I want him to side with Russ Feingold on his FISA and Patriot Acts.
Well, that’s pretty good, Bob. It probably sounded more authentic with you thinking for yourself than you reading off some canned script that Capitol Hill would have heard before.